UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4225

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RAFAEL ANTONIO PAULINO,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:10-cr-00028-RLV-DSC-1)

Submitted: October 25, 2011 Decided: November 14, 2011

Before MOTZ, SHEDD, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gregory Stuart Smith, LAW OFFICES OF GREGORY S. SMITH, 

Washington, D.C., for Appellant. Anne M. Tompkins, United 

States Attorney, Melissa L. Rikard, Assistant United States 

Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Rafael Antonio Paulino pled guilty to unlawfully 

reentering the United States after being convicted of an 

aggravated felony, 8 U.S.C. § 1326(a), (b)(2) (2006), without 

benefit of a plea agreement, and was sentenced to a term of 

forty-six months of imprisonment. Paulino appeals his sentence, 

contending that the district court erred in determining his 

offense level and criminal history. U.S. Sentencing Guidelines 

Manual §§ 2L1.2, 4A1.1 (2010). He also asserts that the court 

erred in not departing downward to avoid unwarranted sentencing 

disparity among similar defendants given reductions available in 

fast track jurisdictions, and that it was error to consider 

prior convictions not admitted by him or proven to a jury beyond 

a reasonable doubt. We affirm.

This court reviews a sentence for reasonableness under 

an abuse-of-discretion standard. Gall v. United States, 552 

U.S. 38, 51 (2007). This review requires appellate 

consideration of both the procedural and substantive 

reasonableness of a sentence. Id.

In 1993, Paulino was convicted as an adult in New York 

state court of two separate felony drug trafficking offenses. 

He was sentenced on November 1, 1993, to concurrent sentences of 

1-to-3 years of imprisonment. When Paulino was sentenced for 

the instant offense, the district court added, over Paulino’s 
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objection, a 16-level increase in the offense level under USSG 

§ 2L1.2(b)(1)(A)(i) because Paulino had been previously deported 

after a conviction for a drug trafficking offense for which he 

had received a sentence of more than 13 months. The term 

“sentence imposed” is defined in Application Note 1(B)(vii) to 

have the same meaning as “sentence of imprisonment” as that term 

is defined in Application Note 2 and subsection (b) of § 4A1.2, 

i.e., “a sentence of incarceration;” the term “refers to the 

maximum sentence imposed.” Paulino’s “sentence imposed” was 

thus three years. 

Paulino argues that the “stated maximum” portion of 

Application Note 2 to § 4A1.2 applies only to the determination 

of criminal history points. However, his interpretation is 

inconsistent with the language of § 2L1.2 cmt. n.1(B((vii), 

which incorporates the definition of “sentence of imprisonment” 

as set out in § 4A1.2 cmt. n.2 without limitation. See United 

States v. Chavez-Diaz, 444 F.3d 1226-27 (10th Cir. 2006). 

Paulino also maintains that the enhancement was error because he 

was incarcerated for less than 13 months before he was 

transferred to the custody of the Immigration and Naturalization 

Service (INS). This claim conflicts with information in the 

presentence report, which shows that Paulino was paroled on 

September 7, 1995, and deported about a week later. His 

sentence was not fully discharged until September 1996. Paulino 
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states on appeal, as he did in the district court, that 

discovery documents showed he was transferred to INS custody in 

September 1994. However, he has never produced any 

documentation to support this claim. Therefore, the district 

court was free to rely on the information in the presentence 

report, see United States v. Terry, 916 F.2d 157, 162 (4th Cir. 

1990), and did not err in making the enhancement. Paulino’s 

allegation that the district court failed to resolve the issue 

is not borne out by the record.

Paulino further argues that his 1993 sentences were 

improperly counted in his criminal history because they were 

outside the applicable time period. Any prior sentence of 

incarceration exceeding 13 months is counted if it was imposed 

within the fifteen years preceding the instant offense, or 

resulted in the defendant’s incarceration within the fifteenyear period. See USSG § 4A1.2(e)(1). Paulino contends that he 

was no longer incarcerated within the meaning of § 4A1.1 after 

he was transferred to INS custody, which he maintains occurred 

in September 1994. He argues that the district court erred in 

finding that INS custody qualified as custody for purposes of 

determining whether he was incarcerated during the applicable 

time period. He maintains that his case should be remanded with 

directions that the district court treat his INS custody as not 

a part of his incarceration or, alternatively, determine when he 
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was actually transferred from New York state custody to INS 

custody. 

As previously discussed, Paulino presented no 

documentation or other evidence in the district court to show 

that he was transferred to INS custody before September 7, 1995, 

the date given in the presentence report. Nor has he presented 

any such documentation on appeal, despite his reference, as in 

the district court, to discovery documents that he alleges would

show the transfer date to be September 1994. Without any proof 

that the information in the presentence report was inaccurate, 

the district court was not required to inquire into the issue. 

Terry, 916 F.2d at 162. Further, as previously discussed, even 

if Paulino was transferred to the INS before the fifteen-year 

period began, he remained incarcerated as a result of his 1993 

convictions. United States v. Chavez-Diaz, 444 F.3d at 1227 

(deportation did not transform 4-to-6-year sentence into 

suspended sentence); United States v. Carrasco-Mateo, 389 F.3d 

239, 244 (1st Cir. 2004) “An offender’s early release cannot 

change the contours of the original sentence imposed after the 

fact.”). 

In the district court, Paulino raised the issue of a 

variance based on sentencing disparity with fast track 

jurisdictions in his sentencing memorandum, although he conceded 

that the issue was foreclosed by this court’s decision in United 
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States v. Perez-Pena, 453 F.3d 236 (4th Cir. 2006). He did not 

raise the issue at all in the sentencing hearing. 

On appeal, Paulino seeks a remand to allow him a 

second chance to argue that Perez-Pena should be reconsidered in 

light of Gall and Kimbrough v. United States, 552 U.S. 85 

(2007). Paulino questions whether Kimbrough effectively 

overruled Perez-Pena, and notes that a panel of the First 

Circuit so concluded in United States v. Rodriguez, 527 F.3d 

221, 225 (1st Cir. 2008) (holding that fast-track disparity not 

barred from consideration under § 3553(a) and abrogating 

contrary prior panel decision); see also United States v. ReyesHernandez, 624 F.3d 405, 4416-17 (7th Cir. 2010) (same); but see

United States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir. 

2009) (holding that Kimbrough did not address disagreement with 

Congressional policy, and so did not effectively overrule its 

precedent so as to permit consideration of fast-track 

disparities under § 3553(a)); United States v. Vega-Castillo, 

540 F.3d 1235, 1239 (11th Cir. 2008) (same); United States v. 

Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008) (same). 

The decision in Rodriguez notwithstanding, Perez-Pena

remains the controlling law in this circuit, and in this circuit

a panel may not overrule the decision of a prior panel. See

United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005). 
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Finally, Paulino asserts that the Supreme Court’s 

decision in Almendarez-Torres v. United States, 523 U.S. 224 

(1998) (holding that prior convictions may be used to increase a 

defendant’s sentence without submitting the fact of the 

conviction to a jury), should be reconsidered. He recognizes 

that this court’s precedent forecloses the issue, see United 

States v. Cheek, 415 F.3d 349, 354 (4th Cir. 2005), but seeks to 

preserve the issue for later review. Under the current law of 

this circuit, the issue is meritless. 

We therefore affirm the sentence imposed by the 

district court. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

AFFIRMED